Kawartha Lakes (City) v. L’Esperance, 2025 ONCJ 135

Case Information

DATE: 2025-03-10
Information Number: 4360 999 24 013891 1-2

IN THE MATTER OF
Township of Emily Comprehensive Bylaw 1996-30 &
City of Kawartha Lakes Clean Bylaw 2014-026 (Clear and Clean)

Between
His Majesty the King
Ex. Rel. City of Kawartha Lakes
Prosecutor

– and –

Steven L’Esperance & Wenda Atkin
Defendants

Ontario Court of Justice
(Central East Region)

Before His Worship Mohammed Brihmi

Reasons for Judgment

Trial dates: October 7, 28 and November 4, 2024
Judgment rendered orally: February 10, 2025
Written reasons released: March 10, 2025

Counsel:
K. Page, Prosecutor on behalf of the City of Kawartha Lakes
W. J. Denby, Agent on behalf of the Defendants S. L’Esperance and A. Atkin

Cases, Statutes and Bylaws Considered or Referred To

• R. v. Mohan, [1994] 2 SCR 9
• R. v. W (D), [1991] 1 S.C.R. 742
• R. v. Mackie, 2012 O.J. No. 4718 (ONCA)
• Desmarais v. Fort Erie (Town), 2016 ONSC 1750
• Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109 (1) (2)
• Constitution Act, 1867, sections 92(13) and 92(16)
• Municipal Act, 2001, S.O. 2001, c. 25, ss. 9, 10, 11
• Planning Act, R.S.O. 1990, c. P.13, s. 67(1)
• Township of Emily Comprehensive Zoning Bylaw 1996-30
• City of Kawartha Lakes Bylaw 2014-026, ss. 4.01, 4.04

Introduction

[1] The defendants, Mr. Steven L’Esperance and Ms. Wenda Lynn Atkin, were looking for a lovely lakefront property in the Kawartha area that needed some maintenance, which they could undertake themselves without dealing with municipal permits. They observed their neighbourhood and what others were doing with their properties. However, the property they purchased in 2019, located at 14 Evergreen Street in Omemee Area, within Emily Township, in the City of Kawartha Lakes is classified as limited service residential, exceptions 4 (LSR-4) and is subject to the comprehensive zoning bylaw number: 1996-30 of the Township of Emily.

Relevant Definitions in the Bylaw

[2] Section 2: BUILDING which includes accessory building, accessory, building and structure.
[3] On page 2-4: BUILDING means any structure whether temporary or permanent, used or built for the shelter, accommodation or enclosure of persons, animals, materials, or equipment. Any tent, awning, bin, bunk or platform, vessel or vehicle used for any of the said purposes shall be deemed a "building".
[4] STRUCTURE (page 2-23) – When used herein as a reference to a use of a "building", STRUCTURE means anything that is erected, built, or constructed of parts joined together with a fixed location on the ground, or attached to something having a fixed location in or on the ground but does not include fences which do not exceed 2 metres in height.
[5] Section 3.1: ACCESSORY BUILDINGS, STRUCTURES AND USES
[6] Section 3.1.3.3: a maximum of three accessory buildings or structures, excluding outdoor swimming pools, shall be permitted on a lot in any class of residential zone.

The Witnesses and Exhibits

[7] The Court heard evidence from the prosecution’s two witnesses, Officer Maria Desousa and Leah Barrie.
[8] Additionally, the Court heard from the defence’s three witnesses: Gregory Paul Wade, Wenda Atkin and Steven L’Esperance. The defendants were represented throughout the trial by their agent, William Denby.
[9] The Court was presented with the following 10 exhibits, which were entered into the trial proper for the Court’s consideration as evidence:

1. Ownership of 14 Evergreen
2. Notice dated June 22, 2023
3. Notice of Violation dated November 9, 2023 for debris
4. Photos of debris taken by Officer Desousa
5. Zoning Notice of Violation dated November 21, 2023 for structures
6. Photos of structures taken by Officer Desousa
7. Certified Zoning Opinion by Leah Barrie
8. Real estate package
9. Collectively, photos
10. Document

[10] After hearing closing arguments from both parties, the matter is now before the Court today for judgment.

The Onus and Burden of Proof

[11] The court is satisfied that this regulatory offence is neither an absolute liability offence nor a mens rea offence. Instead, it meets the requirements of a strict liability offence.
[12] Therefore, this offence places the onus on the prosecution to prove their case beyond a reasonable doubt. However, the defendants have an opportunity to avoid liability if they can demonstrate, on a balance of probabilities, that they acted with due diligence and took all reasonable care given all the circumstances.
[13] Additionally, a defence will also be available if the defendants reasonably believed in a mistaken set of facts which, if true, would render the act or its omission innocent.

The Evidence of the Prosecution’s Witnesses

The Court heard testimony from the prosecution’s two witnesses. The first witness was Officer Maria Desousa. Her testimony could be encapsulated as follows:

[14] Officer Desousa testified that she has been employed as a municipal law enforcement officer for the City of Kawartha Lakes for 10 years. She first became involved with 14 Evergreen Street property on May 26, 2023, when a zoning bylaw complaint was received regarding enclosed trailers, sheds, and debris. This property falls under the comprehensive zoning bylaw of Emily (LSR-4 classification). The owners are Mr. Steven L’Esperance and Ms. Wenda Lynn Atkin.
[15] She testified that the property in question is a 0.48-acre lot with a small cottage. She visited the property on many occasions for the purpose of inspection. On May 26, 2023, she told the Court that she attended the property, spoke with Mr. Steve L’Esperance, informed him of the complaint filed and took photographs.
[16] In addition, she told the Court that she noticed multiple enclosed trailers, three RV trailers, two pop-up trailers, several accessory structures, and scattered items, including extension cords, containers, tarps, and debris such as garbage.
[17] Furthermore, Officer Desousa testified that she attended the property on June 23, 2023 to give Mr. L’Esperance the zoning notice letter, which included instructions on how to comply. The letter was dated June 22, 2023 and addressed to both owners who never responded, according to the Officer.
[18] She then reattended the property on August 1, 2023 to verify compliance regarding the structures and the RV trailers. She confirmed that no change had happened, the seven accessory buildings were still on the property and that there had been no changes since she attended on May 26, 2023.
[19] As the Complainant made more complaints about the property because it was under construction, Officer Desousa reattended on September 19, 2023 and observed a large amount of debris on the property, such as toilet, ladders, excavator, more containers, extension cords and rotten wood. She took photos of all these items.
[20] In addition, she wrote a Clean and Clear Notice and reattended the property again on November 9, 2023 around 3 PM to hand deliver this Notice to Mr. L’Esperance. This notice had a debris removal compliance deadline of December 1, 2023.
[21] She testified that there was construction occurring around the foundation of the cottage, with some earth being removed, and that Mr. L’Esperance was present on the property. Furthermore, she told the Court that there were still seven accessory structures on the property and that none had been removed.
[22] The Court was provided with thirteen photos taken by Officer Desousa at 14 Evergreen St, one dated May 26, 2023, six on June 23, 2023, two on August 1, 2023 and four on November 9, 2023. These photos were entered into evidence (Exhibit 4). They depict items that, according to the Clean and Clear bylaw, qualify as debris because they are not being used for their “rightful” purpose. Among the listed items were extension cords, a garbage container, scrap metal, electrical extension cords, containers, tarps, pop-up trailers, hoses, rotten wood, gasoline containers, trailers, a small shed, toilet, numerous vehicle tires, ladders, and possibly even additional scrap metal at the back, etc.
[23] Furthermore, Officer Desousa testified that property owners are permitted to have construction debris on-site if they are doing renovations. However, they must obtain a building permit, and in this case, the owners had not acquired one.
[24] Following her inspection on November 9, she sent a zoning notice letter by registered mail, dated November 21, 2023, to the defendants, which was signed for by Wenda Atkin. The letter was issued because Officer Desousa had once again contacted the Planning Department to provide approximate measurements of all seven accessory buildings on that lot. According to the zoning bylaw, the property was only permitted three accessory structures, meaning it was not in compliance under the zoning bylaw. This letter was entered as Exhibit 5.
[25] The Court was also provided with seven photos as Exhibit 6, and the Officer testified that they correspond to the information presented on page 2 of Exhibit 5.
[26] She described each structure in the photo, along with approximate dimensions. For instance, the first photo depicted a structure by the lakefront, measuring approximately 10’ by 10’. The second, taken on August 1, showed a shed on the northwest side of the property, also measuring approximately 10’ by 10’. The third photo taken on November 9, captured a grey shed, followed by the Shelter Logic structure, which measured approximately 12’ by 28’.
[27] Additionally, she testified about the fifth photo, which depicted a wooden shed as well as a steel shelter under the trees at the front of the property. Lastly, she referenced a photo taken on September 19, 2023 which showed a white shelter located at the top of the property, underneath the trees, measuring approximately 10’ by 12’.
[28] Officer Desousa confirmed that these sheds meet the definition of a structure under the zoning bylaw. She further testified that she visited the property on multiple occasions to issue part I citations for Clean and Clear infractions, but she was not successful because the owners were not at home. She returned on January 3, 4, 5 and 26, 2024 to issue part I citations but again had no success. Throughout this time, there was no change in the number of structures or the amount of debris on the property.
[29] After laying the charges before the Court, Officer Desousa testified that she conducted a final inspection to determine whether the property had come into compliance and to gather evidence. However, on October 16, 2024 around 2:23 PM, Mr. L’Esperance refused to grant her permission to enter the property for inspection. Instead, she testified that she drove down the road, looked into the property, and saw no indication of any change.
[30] Under cross examination, Officer Desousa was asked whether she had conducted an in-depth search to determine if this property differed from others in the City of Kawartha Lakes. She reiterated that Evergreen Street is a privately owned road, but the property itself is a private property. She also testified that on multiple occasions, Mr. L’Esperance told her that she was trespassing. However, she told the Court that she provided him with a document outlining her powers of entry, explaining that she has the authority under the zoning bylaw to conduct an inspection due to a complaint.
[31] When asked whether she was merely estimating the sizes of the structures and if she had verified if they were fastened to the ground, she testified that all structures were indeed fastened. She also stated that their precise size was irrelevant in determining their compliance.
[32] Regarding what constitute debris under the bylaw and whether firewood qualifies as such, she confirmed that the defendants are permitted to store firewood, provided it is neatly stacked in an organized manner. However, scattered firewood would be considered debris.
[33] She further told the Court that the notice of violation explicitly states that all scrap metal, rotten wood, plastic, RV trailer toilet, tires, and any items not being used for their rightful purpose are considered debris.

Voir Dire to Qualify Leah Barrie as an Expert Witness

[34] Before accepting Leah Barrie as an Expert Witness, the Prosecution requested that the Court qualify her. Therefore, the Court entered into a voir dire to assess her qualifications and determine whether the witness would be able to provide a planning opinion.
[35] The Court must determine whether the prosecution has met the threshold requirements for admissibility as set out in the Supreme Court’s 1994 decision in R. v. Mohan, [1994] 2 SCR 9. This requires an assessment of four key factors: relevancy, necessity, absence of an exclusionary rule, and the proper qualification of the expert. If the evidence presented meets these preconditions and is sufficiently beneficial to the trial process, it will be admitted.
[36] For this matter, the Court heard testimony from the prosecution’s witness, Leah Barrie, who is the Director of Development Services for the City of Kawartha Lakes. She testified regarding her qualifications and expertise, stating that she holds a Master of Science and other planning degrees from the University of Toronto. She also noted her memberships in national and provincial planning organizations and her prior experience as a witness in tribunal hearings on planning matters in 2004. Ms. Barrie is a registered planner and has held various roles and responsibilities within the Planning Department of the City of Kawartha Lakes.
[37] Furthermore, Ms. Barrie testified that she was previously scheduled to provide expert evidence on planning matters in two separate matters in the POA Court, although those instances did not materialize. She confirmed her familiarity with the Township of Emily zoning bylaw 1996-30, among other qualifications.
[38] Ms. Barrie possesses extensive experience and expertise in planning matters. While the defence did not challenge her qualifications, they raised concerns regarding her past actions. Since the Court is not familiar or reviewing those actions in this proceeding, my decision is based solely on the evidence presented and the applicable legal principles.
[39] Having reviewed all the evidence, including the submissions from both the prosecution and defence, the Court finds that Ms. Barrie is properly qualified to provide expert evidence in this matter. In addition, her testimony will assist the Court and contribute to the trial process. Accordingly, the Court accepts her as an expert witness, and her evidence will be admitted for consideration in the trial proper.

The Court heard testimony from the prosecution’s second witness, Leah Barrie. Her evidence could be encapsulated as follows:

[40] Ms. Barrie stated that it would be helpful to refer to the zoning information memo and zoning letters prepared in June and November 2023, as well as the Consolidated Zoning Bylaw for Emily Township and her Zoning Opinion dated November 19, 2023.
[41] She explained the roles of the Planning Division such as supporting the operations of other city departments, interpreting applicable zoning provisions and providing advice on achieving compliance with the zoning bylaw through zoning information memos and letters of opinion.
[42] Ms. Barrie testified that she is familiar with this property, located at 14 Evergreen Street in the former Township of Emily. According to the Township of Emily zoning bylaw, this property is designated as limited service residential (LSR), exception number 4, with a site-specific restriction. The only permitted uses are a vacation or a detached dwelling that lawfully existed on the day the bylaw was passed.
[43] She further testified that Officer Desousa emailed her directly on May 29, 2023, requesting zoning information and attaching several photos of the property. In addition, the planner on duty that day, Nicholas Smith, sought further clarifications from her.
[44] Her zoning opinion, based on section 3.1.3.3 of the zoning bylaw, states that a maximum of three accessory buildings or structures are permitted in any class of residential zone.
[45] Ms. Barrie explained that Officer Desousa sought her opinion specifically regarding the number of accessory structures on the property. After the meeting with her and her manager, based on the concerted discussions, on the information prepared by Mr. Smith, the photographs shared and the material provided, Ms. Barrie formulated her zoning opinion, and concluded that the seven structures on the property should be classified as accessory structures.
[46] She further clarified that the zoning bylaw defines “accessory buildings” as structures and in this case, these structures on the property are accessory to the primary building and can be referred to as accessory structures.
[47] Ms. Barrie emphasized that section 3.1 governs not just accessory buildings or accessory structures or accessory uses, but, in fact, all of them together and the definition of accessory building includes a detached building or structure.
[48] After reviewing the seven items listed in Exhibit 6, she reached the conclusion that a maximum of three accessory buildings or structures shall be permitted on a lot in any class of residential zone. In her zoning opinion of November 19, 2023, she determined that the lot on this property contains seven accessory structures which exceeds the maximum of three, and the size of the structures does not matter, rather, it is the total number that matters.
[49] Ms. Barrie maintained that, based on the photographs from Officer Desousa’s field visits and her own review, the seven structures on the property should all be classified as accessory structures (Exhibit 7: Certified Zoning Opinion of Ms. Barrie).
[50] Under cross examination, she testified that it is customary for fieldwork to take place when an application is filed. However, she has never conducted a site visit on this property. Additionally, she based her opinion entirely on the evidence, observations, and photographs provided by Officer Desousa and her commentary from doing the fieldwork.
[51] When asked about the storage not being fastened to the ground and that they are portable, she told the Court that the definition of structure uses the word of fixed location that could be interpreted on the ground or fastened to another structure that is fixed to the ground and would also include a shed.
[52] In response to a hypothetical question regarding whether temporary structures that could be moved by the owners after completing the maintenance would still be in violation of the zoning bylaw, Ms. Barrie confirmed that the definition includes the word temporary as well as permanent, so the answer is, yes, they would still be in violation. Additionally, when asked whether the zoning bylaw defines a time limit for what would define “temporary”, she clarified that the bylaw does not specify a time frame. Instead, it only distinguishes between the two words, permanent and temporary structures, meaning that anything other than permanent is considered temporary.
[53] Regarding the seven structures in Exhibit 6, she reaffirmed that she based her zoning opinion on non-compliance by reviewing the zoning definition of “building.” She concluded that together, they exceeded the maximum of three accessory structures permitted under the bylaw.
[54] When asked whether a pumphouse is captured as part of the servicing aspect of a house, Ms. Barrie clarified that the zoning bylaw does not govern the servicing aspect of buildings.

Defence Case

The Court heard testimony from Gregory Paul Wade that could be summarized as follows:

[55] Mr. Wade testified that he is a jack of all trades, performing carpentry, plumbing, electrical and any other necessary task. He had been doing property maintenance at the property for a year and had recently repaired the skirting underneath the house and insulation.
[56] The prosecution opted not to ask any question or conduct a cross examination.

The Court heard testimony from Wenda Atkin, co-owner of 14 Evergreen Street property. Her evidence can be encapsulated as follows:

[57] Ms. Atkin stated that they purchased the property in 2019, initially looking for a home that required only painting. However, they ended up choosing this particular property, which was built in the 1960s, because it was beautiful and appeared to be a double lot. She further testified that the house required insulation, new windows, doors, and repairs to the bottom portion of the siding that was rotten.
[58] Furthermore, she described the five structures and debris present on the property when they moved in. She admitted that she did not contact the city for information about the bylaws and just looked around at the other houses on the street, as the area consists of cottages and reclaimed land.
[59] Regarding the renovation of their property, she testified that they had been working on it extensively this year and that all the debris was supposed to have been removed when they took possession of the house.
[60] She also recounted her interaction with Officer Desousa, who visited their property due to a complaint or a concern about people living in the trailers. Ms. Atkin testified that they allowed the Officer to inspect the property and she informed them that they had too many trailers. As a result, they moved some trailers to a storage area. Additionally, Ms. Atkin stated that Officer Desousa gave them what she described as a “ridiculous timeline” for the removal of the extra sheds, requiring them to be gone by September 1st or some similar deadline. However, she testified that they were busy as they were in the midst of the renovation and were unable to meet the timeline.
[61] Under cross examination, Ms. Atkin confirmed that when they purchased the house in 2019, there were five structures on the property. She further acknowledged that the photographs presented in Exhibit 6 depicted seven structures.
[62] When asked about the maintenance work they had undertaken and whether they had any building permits, she admitted that they had not obtained a building permit. She explained that their intention was not to obtain a building permit, as they were not planning to construct any additions, a garage, or a boathouse, only to do a simple renovation that did not require one.
[63] Furthermore, she testified that she did not recall whether she or her husband ever reached out to the municipal law enforcement office to request an extension regarding the removal of debris from their property.

The Court heard from the defendant, Steven L’Esperance, the co-owner of 14 Evergreen Street. His testimony could be summarized as follows:

[64] Mr. L’Esperance testified that they had searched throughout the Kawartha area for a lakefront property they could renovate without having to deal with permits. He admitted that he was unaware of the specific zoning designation “Rural Number 4A” and its details.
[65] He testified about the real estate package in Exhibit 9, which included a description and the images from the original listing. He confirmed that the photos showed multiple structures on the property. In addition, he testified that all these structures, except for the beige one, were pre-existing and not fastened to the ground, though they have a fair bit of weight.
[66] Under cross examination, Mr. L’Esperance was asked about the photos in Exhibit 8, which depicted the property to be pretty clean and quite different from what it was when they originally purchased it, particularly with respect to debris. He acknowledged that the property had been staged for the listing and that much of the debris had been hidden in the forest.
[67] When questioned about the photographs in Exhibit 4 and his familiarity with the Clean and Clear bylaw, he was asked whether the items shown in them constituted debris. He responded, and I quote “I would say like more the definition of debris,” further stating that much of it was construction material used for maintenance. Mr. L’Esperance agreed that construction material constituted debris.
[68] Regarding his efforts to reach out to Officer Desousa or anybody at the municipal law enforcement office to request an extension of the deadline given in the notice of violation, he confirmed that he had emailed Officer Desousa on August 31, 2023. However, he admitted that he had not contacted her to ask for an extension after receiving the Notice of Violation, which was dated Thursday, November 9, 2023.
[69] When the Prosecutor reviewed the photos in Exhibit 6 with Mr. L’Esperance, he acknowledged that they depicted seven sheds on his property, without any duplicate. He further testified that these sheds had been on the property long before their purchase. However, he had no knowledge of exactly when these sheds had been placed on the property.

Issues to be Addressed

[70] The Court identified the following issues that have arisen in this proceeding, and which need to be addressed:

1. Is the Township of Emily Comprehensive Zoning Bylaw number 1996-30 before the court valid?
2. Do sections 9, 10 and 11 of the Municipal Act give the authority to the Municipality to enforce bylaws over private property?
3. Did the defendants permit more than three accessory buildings on their property?
4. If yes, do the sheds on the property meet the definition of accessory buildings or structures as defined in the bylaw?
5. Did the defendants present a defence of legal non-conforming use?
6. Did the defendants fail to comply with a Clean and Clear notice of violation with a deadline of December 1, 2023?
7. Did the defendants commit the offence of allowing debris to accumulate on the property as of January 10, 2024?
8. Did the defendants raise any reasonable doubt in the mind of the Court on part of the evidence of the prosecution?

Is the Township of Emily Comprehensive Zoning Bylaw Number 1996-30 Before the Court Valid?

[71] The Court was supposed to address constitutional questions and Charter applications from the defence on October 7, 2024, the first day of the trial. As the defence failed to bring a proper charter motion before the Court, I explained the process of filing such an application under Section 109 of the Courts of Justice Act and advised the agent for the defence that I would entertain any constitutional application brought before me until the end of the trial, provided it was properly filed.
[72] On November 5, 2024, the Prosecution’s office received motion material from the applicant, which was eight days prior to the hearing scheduled for November 13, 2024. The Court received the same material by email from court services on November 12, 2024.
[73] In her submission, the prosecutor contends that the notice was not served as soon as the circumstances requiring it became known, and that it was not served at least 15 days before the day on which the question was to be argued, as required, unless the Court ordered otherwise. Moreover, there had been no order made by the Court to abridge the time for service, nor was there any proof of service.
[74] Furthermore, the prosecutor told the Court that, after reviewing the material submitted by the defence, she noted that they were essentially asking the Court to rule again on the validity of the bylaw, which the Court had already done on November 4, 2023 in its oral judgment. It was the same application that had been resubmitted, with no additional supporting material.
[75] The defence submitted that they did not agree with the Court’s ruling on the legality of the Township of Emily comprehensive bylaw 1996-30 and that sections 9, 10 and 11 of the Municipal Act clearly state that the municipality has no authority over private land.
[76] After hearing the submissions of both parties, the Court dismissed this motion on the grounds that it was not properly filed and that I had already made a brief oral ruling on the validity of the bylaw on November 4, 2024.
[77] The defence, through Mr. Denby contended that the Township of Emily zoning Bylaw Number 1996-30 is illegal and raised questions about sections 9, 10 and 11 of the Municipal Act, as well as the amalgamation of the Municipality of Kawartha Lakes and the dissolution of the Victoria County in 2001.
[78] As the Court has explained, the defence can bring in a Charter motion before the Court during the trial, but it must respect the procedures for doing so. On October 7, 2024, I explained that section 109 of the Courts of Justice Act outlines the process for making a charter application. I believe the defence had access to a document explaining to self-represented defendants how to handle trials and Charter motions.
[79] The Court accepts that the matter before me is proper. The zoning bylaw is valid and remains in effect as part of the standing law within the City of Kawartha Lakes. The defendants pleaded not guilty to the charges they are facing, and we have heard evidence from both prosecution and defence witnesses.
[80] In addition, the Township of Emily Comprehensive zoning bylaw 1996-30 states on page 2 that the Council of the Township of Emily enacted this Bylaw: I read: “Being a bylaw pursuant to section 34 of the Planning Act of 1990, as amended to regulate the use of land, the location and use of buildings or structure, the type of construction and the height, bulk, size, floor area, spacing, character and minimal opening, elevation of the buildings or structure, and the provision of parking and loading area, facilities in the Township of Emily. Whereas it is considered desirable to control the use of land, the use of lane, the erection and use of buildings or structure in defined areas of the Township of Emily in accordance with section 34 of the Planning Act as, amended, and in conformity with the official land of the County of Victoria”.
[81] Therefore, I accept that this bylaw has been in effect since its adoption by Council in 1996. It has remained valid through the amalgamation of the County of Victoria into the City of Kawartha Lakes. Furthermore, the bylaw continues to be in effect and still implements the City of Kawartha Lake official plan. It remains applicable law for the issuance of building permits.

Defence’s Submission that Section 9, 10 and 11 of the Municipal Act Does Not Give the Authority to the City of Kawartha Lakes Over Private Property

[82] Even though I was never provided with a properly filed constitutional motion or any supporting case law, I recognize that the arguments raised by the defence could potentially impact the powers and the ability of the City of Kawartha Lakes to enforce this bylaw.
[83] For the Court, it is clear that Ontario municipalities are governed by the Municipal Act, 2001, which outlines the powers granted to municipalities and empowers them to operate and pass bylaws. These bylaws allow the municipality to enter onto private properties at any reasonable time without a warrant or the presence of a police officer for the purposes of investigating alleged bylaw infractions or determining compliance with their orders.
[84] Under section 273, the Municipal Act provides a statutory mechanism through which one might apply to quash a bylaw for its illegality. This section states: “Upon the application of any person, the Superior Court of Justice might quash a bylaw of a municipality, in whole or in part, of illegality.”
[85] For this matter, the Court relies on the decision of Justice T. Maddalena of the Ontario Superior Court in Desmarais v. Fort Erie (Town), 2016 ONSC 1750 at paragraphs 64, 65, 68, 69 and 70, which states:

64. The applicants submit that the Municipal Act does not and cannot confer on the municipality the ability to regulate private property.
65. The applicants state that the municipalities are only able to implement property standards bylaws on properties that are owned by the municipality. The applicants state: “The order to remove property is not enforceable because a municipality, like any natural person, does not have any right, title or interest in private property and therefore cannot demand that the private property owner clear their property.”
66. I do not agree with the applicants’ interpretation of the power of a municipality or of the significance of a Crown Patent. The Crown Patent is an instrument by which land is conveyed by the Crown to a private individual or members of the public.
67. Crown Patents are found all over the Province of Ontario. There is nothing in the conveyance from the Crown which prevents properly enacted provincial legislation or suggests that a Crown Patent has paramountcy over a municipality’s ability to regulate private property.
68. The Court confirmed that pursuant to the Constitution Act, 1867, sections 92(13) and 92(16), the province can control private property and there was nothing in the Crown Patent that suggests the government cannot legislate that municipalities have the ability to regulate private property or that the Crown Patent had paramountcy over that regulatory power.

[86] Furthermore, Justice Maddalena relied on the Ontario Court of Appeal decision in R. v. Mackie, 2012 O.J. No. 4718 (ONCA) which held that the authority of the province to control activities on private land is derived from sections 92(13) and 92(16) of the BNA Act and that legislative authority to control the use of land generally undoubtedly belongs to the province under those sections.
[87] Therefore, this Court does not accept the unsubstantiated submission of the defence that either section 9, 10 or 11 of the Municipal Act do not grant the City of Kawartha Lakes legislative authority, or enforcement power over a private property.

Did the Defendants Permit More Than Three Accessory Structures on Their Property?

[88] The Court accepts the undisputed evidence that Mr. L’Esperance and Ms. Atkin have been the lawful owners of the property located at 14 Evergreen since June 28, 2019.
[89] Based on the testimony of Officer Desousa and expert witness Ms. Barrie, this property is zoned limited-service residential Exemption 4 under the Township of Emily Comprehensive zoning bylaw 1996-30. The bylaw permits a maximum of three accessory buildings or structures on the property, in addition to a vacation dwelling or a detached dwelling that lawfully existed on the day the bylaw was enacted in 1996.
[90] Ms. Atkin testified that five sheds already existed on the property when they purchased it. However, Mr. L’Esperance confirmed that seven separate structures were on their property, as depicted in Exhibit 6, without any duplication.
[91] The Court accepts that Section 3.1.3.3 of the zoning bylaw only permits a maximum of three accessory buildings or structures on the property. Based on the evidence presented, including Exhibit 6 and Officer Desousa’s testimony, the Court finds that the defendants who had seven accessory structures on their property, exceeded the allowable limit.

Do the Sheds on the Property Meet the Definition of Accessory Buildings or Structures Under the Bylaw?

[92] The Court accepts the expert witness’s interpretation of the bylaw’s definitions, including those provisions related to accessory buildings and structures which are intended to be read together, and that these structures can either be attached or fixed on the ground permanently or temporarily.
[93] Furthermore, I accept the characterization of the seven structures as accessory buildings and that these buildings are accessory to the primary building. In addition, the lot contained more than the maximum allowed accessory structures of three. The size of the buildings does not matter as the bylaw does not specify a limit as to size of the buildings or structures.
[94] For the Court, a reasonable person looking at the photographs would agree that the seven sheds are fixed to the ground and not floating or levitating.

Defence of Legal Non-Conforming Use

[95] The Court accepts that the burden of proof for establishing a legal non-conforming use rests with the defence, on a balance of probabilities. The key question to be asked is whether the seven sheds depicted in the evidence were lawfully in existence before the Township of Emily Comprehensive zoning bylaw 1996-30 took effect on October 15, 1996, and whether their use has been continuous since then, allowing them to be "grandfathered".
[96] Ms. Atkin testified that five structures/buildings were already on the property when they bought it in 2019. However, Mr. L’Esperance testified that all seven sheds shown in Exhibit 6 had been there for some time before their purchase, without providing any clear or precise time for their existence or any supporting evidence.
[97] As previously noted, the bylaw permits only three accessory structures and there is no evidence before the Court to confirm that the seven accessory structures predate the bylaw’s enactment in 1996. Additionally, there is no evidence of a valid exemption allowing for their presence.
[98] After reviewing all the evidence, the Court concludes that the test for legal non-conforming use fails.

Did the Defendants Fail to Comply with a Clean and Clear Notice of Violation by December 1, 2023 Deadline?

[99] The Court accepts the evidence that Officer Desousa issued a notice of violation on November 9, 2023 to the defendants stating that their property was in violation of the City of Kawartha Lakes Bylaw 2014-026 (as amended). The notice required the removal of debris, specifically listing four detailed items to be cleared. The deadline for compliance was December 1, 2023, and the notice was personally hand-delivered to Mr. L’Esperance.
[100] Regarding the debris, Mr. L’Esperance acknowledged its presence on their property. The Court further accepts that the debris was not removed by the deadline and that the defendants never reached out to Officer Desousa or anyone from the City of Kawartha Lakes bylaw office to request an extension of time.
[101] The defendants cited financial difficulties, the Covid-19 pandemic, and ongoing renovation as the reasons that they had problems complying with the bylaw. Ms. Atkin further stated that Officer Desousa had provided them only a brief time for compliance. The Court accepts that the defendants never requested or had a building permit for their renovation, and they have never asked for an extension of time to remove the debris.
[102] Based on the evidence before me, the Court accepts that the defendants failed to clean their property and did not comply with the Clean and Clear notice of violation by the December 1, 2023 deadline.

Did the Defendants Commit the Offence of Allowing Debris to Accumulate on Their Property as of January 10th, 2024?

[103] The Court acknowledges the defendants’ testimony that their property needed maintenance, including insulation, new windows, and repairs, which they had been undertaking since 2019. However, the evidence from the original listing showed the property to be relatively clean at the time of purchase, in contrast to Exhibit 4, which depicts scattered debris all around the place.
[104] The Court accepts Officer Desousa’s testimony that she inspected the property in early 2024, specifically on January 3, 4, 5 and 26 and observed no change in the number of accessory structures or the accumulated debris.
[105] Additionally, the Court accepts Mr. L’Esperance’s admission that much of the material on the property constitutes debris, including construction materials. Ms. Atkin further confirmed that they never obtained a building permit for their maintenance work and never intended to apply for one, as they considered it just a simple fixer project. Section 4.01 of the Clean and Clear bylaw states: “No owner of a lot or yard shall allow debris or standing water to accumulate on their property.” Therefore, it is clear to the Court that there is absolutely nothing in the bylaw to suggest that the defendants are allowed to accumulate debris on their property during their renovation.
[106] Since the evidence remains unchallenged, the Court concludes that the defendants allowed debris to accumulate on their property, and that debris was still present not only as of January 10, 2024, but also on January 26, 2024.

Did the Defence Raise or Create a Reasonable Doubt in the Mind of the Court or Is There a Reasonable Doubt That the Actus Reus of the Offences Had Not Been Proven or Committed by the Defendants?

[107] The Court recognizes that the defence has the ability to avoid liability by raising doubt that the defendants have exercised all reasonable care to avoid committing the offences or that they had an honest but mistaken belief in facts which, if true, would have rendered the act innocent and could have exculpated them.
[108] Mr. L’Esperance and Ms. Atkin presented contrary evidence, including denying that the number of structures/buildings on their property exceeded the maximum allowable, that they were just doing minor maintenance and not building any addition that would have required a building permit, that they faced financial difficulties in complying with the Clean and Clear notice of violation and that the charges should be dismissed because the bylaws were not violated. In this situation where a reasonable doubt is presented, an examination of the evidence before the Court is necessary in order to assess the credibility of involved parties.
[109] Therefore, it is incumbent upon the court to refer to the decision of the Supreme Court of Canada in R. v. W. (D), [1994] 3 S.C.C. 521, [1994] S.C.C. No. 91 (QL) in which Justice Cory J. set out the credibility test as follows:

1. First, if you believe the evidence of the accused, obviously you must acquit.
2. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
3. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[110] In terms of credibility for this matter, the Court finds itself at the third step of this analysis, based on the following evidence:
[111] On one hand, the Court finds that Officer Desousa, Leah Barrie, Steven L’Esperance and Wenda Atkin were doing their best to tell the truth about what happened.
[112] For the Court, Officer Desousa presented a clear and detailed story about the evidence of her investigation. Under cross examination by Mr. Denby, she was not shaken and confirmed her authority as a municipal bylaw officer to go onto private properties to investigate when they receive a complaint. She further explained, among others, what constitutes debris and when firewood would be considered as such, that the defendants failed to clean their property by the deadline given in the notice of violation by December 1, 2023 and the accumulated debris remained on the property up to January 26, 2024.
[113] In regard to the testimony of Ms. Barrie as an expert witness, the Court finds that she presented a clear and detailed zoning opinion. Under cross examination, she provided an elaborate explanation why the seven structures on the property are accessory to the primary building and can be referred to as accessory structures which exceed the maximum allowable of three and violated the bylaw.
[114] On the other hand, the Court finds the evidence of Mr. L’Esperance and Ms. Atkin to be somewhat problematic, inconsistent and in some instances contradictory.
[115] The Court heard contradictory evidence from the defendants about the structures when they bought their house in 2019. At one point, Ms. Atkin testified that there were five structures/buildings, while Mr. L’Esperance stated there were seven structures. However, the original listing of the real estate package shows up to three structures.
[116] The defendants testified that they are experienced researchers and did a lot of research into legal documents as they worked for Legal Aid Ontario. I find it difficult to accept that the investigation for their matter started on May 26, 2023 and they could not find information about the bylaws and the offences they were facing in order to come into compliance.
[117] The Court does not accept the submission of the defence that the number of building/structures on the property does not exceed the maximum allowable. The evidence before me is that defendants received two notices about the accessory building/structures on their property. Officer Desousa’s evidence showed that the property had seven accessory structures, while zoning bylaw 1996-30 only permits a maximum of three as well as the zoning opinion of Ms. Barrie that those structures meet the definition as set out in the bylaw.
[118] For the Court, even Mr. L’Esperance agreed in cross examination that he had seven structures on his property. In my view, a reasonable person who looks at the sheds from all the evidence presented, including the photos in Exhibit 6 would agree that the sheds are fixed structures.
[119] I do not accept the testimony of the defendants that they were renovating their property, facing financial difficulties, and were not given reasonable time to comply with the Notice of violation of November 9, 2023, which had a deadline of December 1, 2023.
[120] For the Court, a reasonable person would have acted differently in the circumstances. A reasonable person would have reached out and asked Officer Desousa or anyone from the City of Kawartha Lakes bylaw office for an extension of time to remove the debris, but they did not do so.
[121] In addition, a reasonable person would have obtained a building permit to carry out the necessary renovation and properly disposed of the construction debris afterward, something the defendants deliberately avoided.
[122] Furthermore, I accept that the property appeared clean when the defendants purchased it, and Mr. L’Esperance testified that the debris was hidden in the forest. However, a reasonable person would agree that the photographs submitted by the prosecution in Exhibit 4 clearly depict various types of debris, including construction debris, on the property.
[123] The Court accepts that the defendants took no reasonable steps to clean or clear their property of debris before December 1, 2023. In fact, I accept that they allowed the debris to accumulate and remain on their property until at least January 26, 2024, well beyond the deadline specified in the notice of violation.

Conclusion

[124] After reviewing the relevant case law, the totality of the evidence before Court, including the reasoning provided earlier, the viva voce testimony, the documentary evidence and a thorough review of the submissions from the Prosecution and Defence, the Court finds that the prosecution has met its onus of proving the actus reus of the offences against both defendants, Mr. L’Esperance and Ms. Atkin, beyond a reasonable doubt.
[125] In addition, the Court finds that the defendants have not satisfied, on a balance of probabilities, that they have exercised all reasonable care to avoid committing the offences or that they had an honest but mistaken belief in facts which, if true, would have rendered the acts innocent and exculpated them.
[126] Therefore, I find the defendants guilty and register a conviction against them.